Estate of Newsum, In re, 16456
| Decision Date | 13 September 1990 |
| Docket Number | No. 16456,16456 |
| Citation | 798 S.W.2d 165 |
| Parties | In re ESTATE OF Opal Mae NEWSUM. Mae ROBINSON, Petitioner-Appellant, v. Carol BRAKEBILL, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Devon F. Sherwood, Springfield, for petitioner-appellant.
Elizabeth Rohrs, Bolivar, for respondent-respondent.
This is a proceeding for discovery of assets, § 473.340, 1 instituted by a verified petition filed in the Probate Division of the Circuit Court of Polk County by Mae Robinson, personal representative of the Estate of Opal Mae Newsum ("Opal"), deceased. Defendant is Carol Brakebill ("Carol").
The petition sought an order requiring Carol to deliver four items to the petitioner as assets of Opal's estate. In the alternative, petitioner requested judgment against Carol for all sums represented by the four items.
The four items in dispute were two bank accounts ("the NOW account") and ("the FM account") in the Polk County Bank at Bolivar, and two certificates of deposit ("the CD's") issued by that bank.
The petition alleged: The NOW account, which was held jointly by Opal and Carol, was created in July 1983 merely for the convenience of Opal for use in payment of Opal's bills; it was created as a joint account as a result of Carol's undue influence over Opal; on March 22, 1988, as a result of Carol's undue influence, Opal created the FM account as a joint account between Carol and Opal; on May 31, 1988, the CD's, each of which was titled in the name of Opal, were cashed by Carol when Opal was semi-comatose and lacked sufficient mental capacity to transact business; Carol placed the proceeds of the CD's in the NOW account and later converted the NOW account and the FM account to her own use; in July 1988 a guardianship was opened for Opal; prior to the guardianship proceeding, Opal had been ill and infirm and suffered from confusion, dizziness and loss of memory; also prior to the guardianship proceeding, Carol had gained the confidence and trust of Opal and Carol had acted in a fiduciary relationship in advising Opal with respect to Opal's financial affairs; on August 15, 1988, Opal died at the age of 83.
Carol's answer to the petition consisted essentially of a general denial.
Following an extended evidentiary hearing, the trial court, in a meticulous memorandum, made findings of fact, found the issues in favor of Carol and entered judgment denying the petition. The court found, among other things: the NOW account and the FM account were "both valid joint accounts"; Carol, as the surviving joint tenant, was entitled to the proceeds thereof, including the two CD's which were deposited into the NOW account on May 31, 1988.
The trial court also found the facts set forth in the following five paragraphs.
Opal was a retired school teacher and a widow who lived alone in Bolivar until her hospitalization on May 15, 1988. She was active and independent. She had a loving and close relationship with her niece Carol. Carol was very devoted to Opal. From the time she was a child, Carol spent a considerable amount of time in Opal's home. For the last 15 years of Opal's life, Carol talked to Opal or saw her every day.
Opal was the baby sitter for each of Carol's children and had the children in her home often as they grew older. Opal referred to Carol and her children as "my family."
Carol ran errands for Opal and answered questions Opal had with respect to her bills or prospective purchases. Carol and Opal often went on shopping trips together. During Opal's final illness in 1988, Carol was the family member whom the doctors consulted and was the one who made arrangements for Opal to be transferred from one facility to another.
Carol testified that Opal did not ask Carol's advice with respect to Opal's banking affairs or the titling of her accounts or CD's. This testimony was confirmed by testimony from several bank employees, including Faye Barham and Kay Nichols who testified they waited on Opal when she had banking business and that Opal never appeared to be confused or indecisive. From July 1983 until May 15, 1988, when she was admitted to the hospital, Opal was in good health and quite active. Opal had many friends with whom she visited often. They stated that Opal never appeared to be disoriented or confused and was in fact friendly and talkative on each occasion. Opal was always neat and well groomed. Opal was active in a sorority and the retired teachers association. Opal taught as a substitute teacher until 1980. Opal did most of her own shopping and kept her house and prepared her meals. Opal drove her car to Walmart on a shopping trip the week before her hospitalization on May 15, 1988.
Opal was independent and self-sufficient and made her own decisions. While Opal may have often sought advice from others, including Carol, the ultimate decisions were her own. No undue influence was exercised by Carol over Opal. "The court does not believe that Carol's will was substituted for Opal's will or that Opal was deprived of her own free choice at any time." Carol was the natural object of Opal's bounty. Opal had no checking accounts in her own name as of May 28, 1988, and for some time prior thereto the only accounts Opal had were joint accounts with Carol, the NOW account and the FM account.
Petitioner appeals.
In general, petitioner contends that the judgment is against the weight of the evidence and is a misapplication of the law because Carol, on the respective dates when the NOW account and the FM account were created and the two CD's were cashed, occupied a fiduciary or confidential relationship with Opal, the accounts were created for Opal's benefit in protecting her from confidence men and in paying her expenses, and the foregoing facts were shown by clear and convincing evidence. As a result of that showing, petitioner asserts that the trial court should have imposed a constructive trust on the funds represented by the bank accounts and the CD's, and erred in not doing so.
Appellate review of this nonjury case is governed by Rule 73.01(c) as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law. See Hawkins v. Allison, 764 S.W.2d 719, 727 (Mo.App.1989).
The following is the chronology of the significant events, together with a history of the NOW account, the FM account and the CD's, and some of the trial court's findings:
1983
July 9--Opal admitted to hospital for problems connected with irregular heartbeat.
July 11--NOW account opened by Opal.
On July 11, 1983, an existing account in Opal's name was changed to the NOW account, a joint account with right of survivorship, with the joint tenants being Opal and Carol.
Evelyn Holt, who is Opal's sister-in-law and Carol's mother, 2 testified that in 1983 Opal got sick and Holt took Opal to the Evelyn Holt went to the bank, got the signature card, and took it to Opal at the hospital. Opal signed the card and marked an X in the box calling for the account to be a joint tenancy account. Carol "on the 11th or the next day, one or the other," signed the card which Opal had already signed.
hospital in Bolivar. While in the hospital, Opal asked Holt to get a signature card from the Polk County Bank. Carol was in St. Joseph. 3 Opal wanted Carol's name on her checking account so Carol could pay her bills in the event that Opal became "sicker than she was at that time."
In 1983 Carol wrote some checks on the account for payment of Opal's medicine, Opal's doctor bills, and Opal's hospital bill. After making those payments in 1983, Carol wrote no checks on the NOW account until on March 22, 1988, when the FM account was created at Opal's request.
On a check drawn by Carol on March 22, 1988, $19,076.99 was transferred from the NOW account to the newly created FM account. On May 31, 1988, the two CD's, totaling $11,981.75 (with accrued interest), were deposited in the NOW account. On August 17, 1988, after Opal's death, Carol withdrew the funds from the NOW account and it was closed.
All of the checks written by Carol on the NOW account during Opal's lifetime were for payment of Opal's bills, including bills for nursing home care and medical expenses incurred in 1988.
The trial court found that the NOW account was opened and the signature card was signed by Carol at the direction and request of Opal, and that Carol delivered the card to the bank at Opal's direction. The trial court also found that Carol had no other part "in arranging for the opening of the account or the type of account," and that "employees of the bank also confirmed this testimony."
July 15--Opal discharged from hospital.
1988
March 22--FM account opened.
Faye Barham, a bank employee, testified that the FM account was opened March 22, 1988, with an initial deposit of $19,076.99 [from the NOW account]. This account was opened with a signature card signed by Opal and Carol who were named as joint tenants with right of survivorship. Withdrawals from this account required both signatures of Opal and Carol.
Kay Nichols, another bank employee, testified that she was the employee who opened the FM account and that, consistent with bank policy, she explained to Opal and Carol the survivorship aspects of the joint account. Carol was with Opal when the account was opened.
James Brakebill, Carol's husband, testified that in March of 1988 he heard Opal discuss the reason for the opening of the FM account. It was set up "for two signatures" because Opal was concerned that she might be tricked. Opal had read about people "coming through town and selling paint and roofing" and she knew they preyed on elderly people.
Carol testified that she was...
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